[* 295]

*CHAPTER X.

OF THE CONSTITUTIONAL PROTECTIONS TO PERSONAL LIBERTY.

ALTHOUGH the people from whom we derive our laws now possess a larger share of civil and political liberty than any other in Europe, there was a period in their history when a considerable proportion were in a condition of servitude. Of the servile classes one portion were villeins regardant, or serfs attached to the soil, and transferable with it, but not otherwise, while the other portion were villeins in gross, whose condition resembled that of the slaves known to modern law in America.2 How these people became reduced to this unhappy condition, it may not be possible to determine at this distance of time with entire accuracy; but in regard to the first class, we may suppose that when a conqueror seized the territory upon which he found them living, he seized also the people as a part of the lawful prize of war, granting them life on condition of their cultivating the soil for his use; and that the second were often persons whose lives had been spared on the field of battle, and whose ownership, in accordance with the custom of barbarous times, would pertain to the persons of their captors. Many other causes also contributed to reduce persons to this condition. At the beginning of the reign of John

1 Litt. § 181; 2 Bl. Com. 92. "They originally held lands of their lords on condition of agricultural service, which in a certain sense was servile, but in reality was not so, as the actual work was done by the theows, or slaves. . . . They did not pay rent, and were not removable at pleasure; they went with the land and rendered services, uncertain in their nature, and therefore opposed to rent. They were the originals of copyholders." Note to Reeves, History of English Law, Pt. I. c. 1.

2 Litt. § 181; 2 Bl. Com. 92. "These are the persons who are described by Sir William Temple as

'a sort of people who were in a condition of downright servitude, used and employed in the most servile works; and belonging, they and their children and effects, to the lord of the soil, like the rest of the stock or cattle upon it.'" Reeves, History of English Law, Pt. I. c. 1.

8 For a view of the condition of the servile classes, see Wright, Domestic Manners and Sentiments, 101, 102; Crabbe, History of English Law (ed. of 1829), pp. 8, 78, 365; Hallam, Middle Ages, Pt. II. c. 2; Vaughan, Revolutions in English History, Book 2, c. 8; Broom, Const. Law, 74 et seq.

it has been estimated that one-half of the Anglo-Saxons were in a condition of servitude, and if we go back to the time of the Conquest, we find a still larger proportion of the people held as the property of their lords, and incapable of acquiring and holding any property as their own. Their treatment was such as might have been expected from masters trained to war and violence, accustomed to think lightly of human life and human suffering, and who knew little of and cared less for any doctrine of human rights which embraced within its scope others besides the governing classes.

It would be idle to attempt to follow the imperceptible

*

steps by which involuntary servitude at length came to [* 296] an end in England. It was never abolished by statute,2

and the time when slavery ceased altogether cannot be accurately determined. The causes were at work silently for centuries; the historian did not at the time note them; the statesman did not observe them; they were not the subject of agitation or controversy; but the time arrived when the philanthropist could examine the laws and institutions of his country, and declare that slavery had ceased to be recognized, though at what precise point in legal history the condition became unlawful he might

And

1 Hume, History of England, Vol. more of this kind of servitude. I. App. 1. see Crabbe, History of English Law Barrington on the Statutes (3d (ed. of 1829), 574. This author says

2

ed.) 272.

3 Mr. Hargrave says, at the commencement of the seventeenth century. 20 State Trials, 40; May, Const. Hist. c. 11. And Mr. Barrington (On Stat. 3d ed. p. 278) cites from Rymer a commission from Queen Elizabeth in the year 1574, directed to Lord Burghley and Sir Walter Mildmay, for inquiring into the lands, tenements, and other goods of all her bondmen and bondwomen in the counties of Cornwall, Devonshire, Somerset, and Gloucester, such as were by blood in a slavish condition, by being born in any of her manors, and to compound with any or all of such bondmen or bondwomen for their manumission and freedom. And this commission, he says, in connection with other circumstances, explains why we hear no

that villeinage had disappeared by the time of Charles II. Hurd says in 1661. Law of Freedom and Bondage, Vol. I. p. 136. And see 2 Bl. Com. 96. Lord Campbell's Lives of the Chief Justices, c. 5. Macaulay says there were traces of slavery under the Stuarts. History of England, c. 1. Hume (History of England, c. 23) thinks there was no law recognizing it after the time of Henry VII., and that it had ceased before the death of Elizabeth. Froude (History of England, c. 1) says in the reign of Henry VIII. it had practically ceased. Mr. Christian says the last claim of villeinage which we find recorded in our courts was in 15th James I. Noy, 27; 11 State Trials, 342. Note to Blackstone, Book 2, p. 96.

not be able to determine. Among the causes of its abrogation he might be able to enumerate: 1. That the slaves were of the same race with their masters. There was therefore not only an absence of that antipathy which is often found existing when the ruling and the ruled are of different races, and especially of different color, but instead thereof an active sympathy might often be supposed to exist, which would lead to frequent emancipations. 2. The common law presumed every man to be free until proved to be otherwise; and this presumption, when the slave was of the same race as his master, and had no natural badge of servitude, must often have rendered it extremely difficult to recover the fugitive who denied his thraldom. 3. A residence for a year and a day in a corporate town rendered the villein legally free;1 [* 297] so that to him the towns constituted cities of refuge.

4. The lord treating him as a freeman, as by receiving homage from him as tenant, or entering into a contract with him under seal,- thereby emancipated him, by recognizing in him a capacity to perform those acts which only a freeman could perform. 5. Even the lax morals of the times were favorable to liberty, since the condition of the child followed that of the father; 2 and in law the illegitimate child was nullius filius, had no father. And, 6. The influence of the priesthood was generally against slavery, and must often have shielded the fugitive and influenced emancipations by appeals to the conscience, especially when the master was near the close of life, and the conscience naturally most sensitive. And with all these influ

1 Crabbe, History of English Law (ed. of 1829), p. 79. But this was only as to third persons. The claim of the lord might be made within three years. Ibid. And see Mackintosh, History of England, c. 4.

2 Barrington on Statutes (3d ed.), 276, note; 2 Bl. Com. 93. But in the very quaint account of "Villeinage and Niefty," in Mirror of Justices, § 28, it is said, among other things, that "those are villeins who are begotten of a freeman and a nief, and born out of matrimony." The ancient rule appears to have been that the condition of the child followed that of the mother; but this was changed in the time of Henry I.

Crabbe, History of English Law (ed. of 1829), p. 78; Hallam, Middle Ages, Pt. II. c. 2.

3 In 1514, Henry VIII. manumitted two of his villeins in the following words: 66 Whereas God created all men free, but afterwards the laws and customs of nations subjected some under the yoke of servitude, we think it pious and meritorious with God to manumit Henry Knight, a tailor, and John Herle, a husbandman, our natives, as being born within the manor of Stoke Clymercysland, in our county of Cornwall, together with all their issue born or to be born, and all their goods, lands, and chattels acquired, so as the said persons and their issue

ences there should be noted the further circumstance, that a class of freemen was always near to the slaves in condition and suffering, with whom they were in association, and between whom and themselves there were frequent intermarriages,1 and that from these to the highest order in the State there were successive grades; the children of the highest gradually finding their way into those below them, and ways being open by which the children of the lowest might advance themselves, by intelligence, energy, or thrift, through the successive grades above them, until the descendants of dukes and earls were found cultivating the soil, and the man of obscure descent winning a place among the aristocracy of the realm, through his successful exertions at the bar, or his services to the State. Inevitably these influences must at length overthrow the slavery [* 298] of white men which existed in England,2 and no other ever became established within the realm. Slavery was permitted, and indeed fostered, in the colonies; in part because a profit was made of the trade, and in part also because it was supposed that the peculiar products of some of them could not be profitably cultivated with free labor; and at times masters brought their slaves with them to England and removed them again without question, until in Sommersett's Case, in 1771, it was ruled by Lord Mansfield that slavery was repugnant to the common law, and to bring a slave into England was to emancipate him.4

shall from henceforth by us be free and of free condition." Barrington on Statutes (3d ed.), 275. See Mackintosh, History of England, c. 4. Compare this with a deed of manumission in Massachusetts, to be found in Sumner's Speeches, II. 289; Memoir of Chief Justice Parsons, by his son, 176, note.

*

ecclesiastics, multiplying presumptions and rules of evidence consonant to the equal and humane spirit which breathes throughout the morality of the Gospel. Hume (History of England, c. 23) seems to think emancipation was brought about by selfish considerations on the part of the barons, and from a conviction that the re

1 Wright, Domestic Manners and turns from their lands would be inSentiments, p. 112.

2 Macaulay (History of England, c. 1) says the chief instrument of emancipation was the Christian religion. Mackintosh (History of England, c. 4) also attributes to the priesthood great influence in this reform, not only by their direct appeals to the conscience, but by the judges, who were

creased by changing villeinage into socage tenures.

8 Robertson, America, Book 9; Bancroft, United States, Vol. I. c. 5.

* Lofft, 18; 20 Howell State Trials, 1; Life of Granville Sharp, by Hoare, c. 4; Hurd, Law of Freedom and Bondage, Vol. 1. p. 189. The judgment of Lord Mansfield is said to

The same opinion had been previously expressed by Lord Holt, but without authoritative decision.1

In Scotland a condition of servitude continued to a later

period. The holding of negroes in slavery was indeed [* 299] held to be illegal soon after the Sommersett Case; but the salters and colliers did not acquire their freedom until 1799, nor without an act of Parliament.2 A previous statute for their enfranchisement through judicial proceedings had proved ineffectual.3

The history of slavery in this country pertains rather to general history than to a work upon State constitutional law. Throughout the land involuntary servitude is abolished by constitutional amendment, except as it may be imposed in the punishment of crime. Nor do we suppose the exception will permit the convict to be subjected to other servitude than such as is under the control and direction of the public authorities, in the

have been delivered with evident reluctance. 20 State Trials, 79; per Lord Stowell, 2 Hagg. Adm. 105, 110; Broom, Const. Law, 105. Of the practice prior to the decision Lord Stowell said: " The personal traffic in slaves resident in England had been as public and as authorized in London as in any of our West India Islands. They were sold on the Exchange, and other places of public resort, by parties themselves resident in London, and with as little reserve as they would have been in any of our West India possessions. Such a state of things continued without impeachment from a very early period up to nearly the end of the last century." The Slave Grace, 2 Hagg. Adm. 105. In this case it was decided that if a slave, carried by his master into a free country, voluntarily returned with him to a country where slavery was allowed by the local law, the status of slave would still attach to him, and the master's right to his service be resumed. Mr. Broom collects the authorities on this subject in general, in the notes to Sommersett's Case, Const. Law, 105.

1 "As soon as a slave comes into England, he becomes free; one may be a villein in England, but not a slave." Holt, Ch. J., in Smith v. Brown, 2 Salk. 666. See also Smith v. Gould, Ld. Raym. 1274; s. c. Salk. 666. There is a learned note in Quincy's Rep. p. 94, collecting the English authorities on the subject of slavery.

239 Geo. III. c. 56.

8 May's Const. Hist. c. 11.

• Amendments to Const. of U. S. art. 13. See Story on the Constitution (4th ed.), c. 46, for the history of this article, and the decisions bearing upon it. The Maryland act for the apprenticing of colored children, which made important and invidious distinctions between them and white children, and gave the master property rights in their services not given in other cases, was held void under this article. Matter of Turner, 1 Abb. U. S. 84. This thirteenth amendment conferred no political rights, and left the negro under all his political disabilities. Marshall v. Donovon, 10 Bush, 681. See also United States v. Cruikshanks, 94 U. S. Rep. 542.